Can We Safeguard Our Democracy After McCutcheon?

Supreme Court Chief Justice John Roberts waves after giving the commencement address on Friday, May 24, 2013, at LaLumiere School in LaPorte, Ind. (AP Photo/South Bend Tribune, James Brosher)

The Supreme Court’s evisceration of our campaign finance rules is a powerful argument for the cleansing properties of sunlight. We should respond to McCutcheon by pushing for the full and timely disclosure of every penny donated to advance a political agenda.

If America’s wealthiest can offer unlimited dollars to shape our politics, the least we can do is force them to own their activism. It’s time to get rid of the loopholes for sham “social welfare” organizations and trade groups. It’s time to wipe out the dark money, and force those wealthy few to publicly stand behind their positions.

That’s not only a good and timely idea – it may also be the only viable tool we have left to protect our democracy, at least for the foreseeable future.

When the Supreme Court handed down its decision in McCutcheon, Sam Steiner, a fellow at Yale Law School, wrote that the court’s conservatives have “no idea how money works in politics.” It’s a common criticism. As Justice Stephen Breyer noted in his dissent in McCutcheon, the conservative bloc’s decision in the case rested “upon its own, not a record-based, view of the facts.”

But it’s more likely that the justices know exactly how money works in politics. Severalstudies have shown that the court’s conservatives are far more likely to engage in “judicial activism” than their liberal counterparts. In Citizens United, they went so far as to order the litigants to re-argue their case on First Amendment grounds, prompting former Justice John Paul Stevens to write, “Five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”

There’s no reason to believe that a majority that almost always rules in favor of the US Chamber of Commerce doesn’t know what eviscerating our campaign finance rules means. Rather, they’ve been working to create the world they want to see. Ari Berman wrote that the Roberts court has consistently “made it far easier to buy an election and far harder to vote in one.” (Ironically, just eight months after gutting the Voting Rights Act in Shelby County v. Holder, John Roberts wrote in McCutcheon that “there is no right more basic in our democracy than the right to participate in electing our political leaders.”)

But even as the 5-4 majority trampled longstanding campaign finance rules designed to check the influence of the wealthiest Americans, they left open one avenue to restrain our slide toward plutocracy: In both Citizens United and McCutcheon, they suggested that disclosure requirements would be enough to prevent the corruption of our electoral process.

Conservatives have long championed that position as an alternative to limits on political spending. For two decades, Senate Minority Leader Mitch McConnell (R-KY) preached that disclosure was the Holy Grail of campaign finance reform — the perfect way to balance the rights of the wealthiest to engage in politics with the public’s interest in not having the voices of ordinary citizens drowned out by megaphones wielded by billionaires.

As an editorial in the Lexington Herald-Leader pointed out, in the late 1980s, McConnell co-sponsored legislation — with his current nemesis Harry Reid (D-NV) — that “would have required disclosure of independent groups or individuals who intended to spend more than $25,000 promoting or attacking a candidate.” In 1996, he “supported public disclosure of all election-related spending, including spending by independent groups and contributions to political parties.” A year later, he would write, “public disclosure of campaign contributions and spending should be expedited so voters can judge for themselves what is appropriate.” As recently as 2007, McConnell threw his weight behind an amendment that “would require organizations filing complaints before the Senate Ethics Committee to disclose their donors so the public could have more transparency.”

But a few years – and a couple of key campaign finance cases – later, and McConnell now argues that disclosure rules are “un-American.” In a relatively short span, they became a Democratic “plot” to rig elections.

The DISCLOSE Act, which would require greater transparency – and bar foreign companies and firms that received bailout funds from funding campaigns — has been blocked twice by Senate Republicans in the past four years, and Mitch McConnell led the opposition. Dan Froomkin reported for TheHuffington Post that 14 of the GOP senators who filibustered the bill in 2012 had expressed support for a similar measure in 2000, and many would have voted for it “were it not for enormous pressure applied” by Mitch McConnell.

The Herald Leader called out McConnell’s “hypocrisy” on the issue, and it is obviously that. But it’s also just a savvy politician reacting rationally to a changing electoral landscape. Our system of public campaign financing is in tatters, the floodgates of private money are wide open and the big donors lean heavily toward his party.

Conservatives know how powerful disclosure rules can be. Donors don’t want to be linked to groups pushing unpopular causes. They fear becoming entangled with divisive social issues – they want to support politicians who will cut their taxes, roll back regulations and oppose minimum wage hikes, but often those same politicians hold views on things like women’s rights or equality for gays and lesbians that fall embarrassingly outside today’s mainstream.

The prospect of having their names and brands attached to their political activism scares a lot of deep-pocketed donors. In a rare interview with Forbes, Charles Koch defended the lengths to which he and his brother David go to hide the names of their fellow funders and obscure their own political activities through a network of murky front groups as a necessary evil. “We get death threats, threats to blow up our facilities, kill our people,” he said. “So long as we’re in a society like that, where the president attacks us and we get threats from people in Congress, and this is pushed out and becomes part of the culture… then why force people to disclose?”

The hyperbole is consistent with billionaire Tom Perkins calling modestly populist rhetoric a precursor to a “progressive Krystallnacht.” But strip away the melodrama, and what Koch is really saying is that he and his brother and other wealthy donors are entitled to use their fortunes to shape our political discourse without facing any criticism from their fellow citizens. And that’s a “right” you won’t find in any constitution.

As our colleague John Light points out, the influence of money in politics controls all other issues – the interests of large-dollar donors usually trump the popular will. A constitutional amendment explicitly authorizing Congress to regulate political spending is a great idea, but an exceptionally tough lift. And with the court’s current makeup, even the few remaining hard limits on political spending are in danger.

Disclosure is the only avenue they’ve left open to us, and if we seize it with enough energy — if we use it as leverage to get some real transparency in our elections — then we might just find a silver lining to the dark clouds that McCutcheon and Citizens United represent.

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